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Son of Sam loophole may help killer get kids' cash

By Frank Eltman, The Associated Press

Posted:
10/13/2013 07:02:15 PM EDT

Updated:
10/14/2013 11:05:48 AM EDT

This combination of file photos provided by the Nassau County Police Department shows Leatrice Brewer in 2003, and two of her children, Jewell Ward, and Michael Demesyeux, right. (AP Photo/Nassau County Police Department)

MINEOLA, N.Y. — It's the hallmark of New York's Son of Sam law and others like it across the nation — convicted criminals should not be able to profit from their crimes.

But legal experts say the case of a Long Island mother who drowned her three children in a bathtub and is now seeking to cash in could succeed because of a loophole. Since Leatrice Brewer was never convicted — instead found not guilty by reason of mental disease — legal experts say she could make a plausible case to receive some of her children's $350,000 estate.

"The Brewer case is a novel circumstance," said George Washington University law professor Jonathan Turley. "The facts do seem to place her outside the scope of the law, although that does not mean there could not be other barriers to her recovering from the estate of her children."

Brewer, 33, slashed her daughter's throat before drowning her and two younger brothers in 2008, believing she was saving them from the deadly effects of voodoo. Hours after the killings, she survived two suicide attempts — swallowing a concoction of home cleaning fluids and later jumping out a second-story window.

She was found not guilty because of mental disease or defect in the deaths of the children, ages 1, 5 and 6, and was committed to a state psychiatric hospital.

A hearing before Nassau County Surrogate Court Judge Edward McCarty next month will determine if Brewer is entitled to a share of the proceeds from two lawsuits the children's fathers settled with the county; they claimed social workers failed to properly monitor the woman and children.

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Caseworkers visited Brewer's apartment two days before the killings and found no one home but neglected to schedule an immediate follow-up visit. Two social workers were later suspended.

"As a human being, I am outraged and disgusted by this," said attorney Thomas Foley, who represents the father of the two slain boys. "As an attorney, I have some level of understanding of why we have to go through this charade, but it is difficult to forget we are here because of the actions of a crazy person who killed her kids."

Kenneth Weinstein, a court-appointed attorney representing any possible unknown heirs who may surface, was just as blunt: "It would stand the law on its ear if she were to receive any proceeds from her own heinous, felonious conduct."

New York was the first state to enact a Son of Sam law in the 1970s following the capture of notorious serial killer David Berkowitz. Its intent was to bar Berkowitz and other criminals from profiting from their crimes through the commercial exploitation of their stories.

The U.S. Supreme Court struck down the law in 1991 for violating the First Amendment's guarantee of free expression, ruling it would have encompassed works including Henry David Thoreau's "Civil Disobedience" and "The Autobiography of Malcolm X."

New York revised its law in 1992, and the state Senate has passed legislation seven times since 2006 — most recently in July, albeit with little fanfare — to try to address the issue of people held not responsible because of mental disease, said the bill's sponsor, Sen. John Flanagan. Companion legislation has been proposed in the state Assembly but has yet to gain any traction. Assemblyman Charles Lavine said he was optimistic the notoriety of the Brewer case could spark passage.

More than 40 states have enacted similar Son of Sam legislation, though there have been several successful court challenges on First Amendment grounds as well, said David L. Hudson, a scholar with the First Amendment Center in Nashville, Tenn.

Andy Kahan, a victim's rights advocate for the Houston Police Department and a national expert on Son of Sam and related laws, said he knows of no other efforts to close existing loopholes in other states.

"Perhaps as a result of this case, others will go back and look at and consider revising their Son of Sam laws," he said.

Although legal experts agree the case would establish a precedent if Brewer succeeds, she's not expected to see any money because of a $1.2 million lien against her for psychiatric counseling and other services she has received since her arrest. Her court-appointed attorney did not return a telephone call seeking comment.

Maebell Mickens, Brewer's grandmother, disputed that the woman's motivation is money, though she did not offer an alternative explanation.

"She ain't never wanted no money," Mickens told The Associated Press in a brief telephone interview.

"I love my granddaughter. I love her dearly, and I miss my great-grandchildren. I long for them; my heart hurts for them every day of my life."

Mickens said she sometimes speaks to Brewer by telephone. "She misses the children; she is still in so much pain. She calls crying and longing to hold her children in her arms again.

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